There is a very worthwhile two-part series by Kurt Streeter that is running in the LA Times Sunday and today. It is about a 70-year-old federal Judge who went out on a legal limb to snatch a 3-strikes case.

The judge in the story is Spencer Letts, a Republican whom Reagan appointed to the bench, born to a privileged family, attended Yale then Harvard Law, went to a high profile law firm before becoming the legal eagle for Teledyne where he made enough money that his family would be permanently comfortable.

But, Letts didn’t fit into whatever neat little boxes his background might suggest. He was his own man. And as a jurist he was reluctant to put others into neat little boxes, despite a system that seemed to conspire to do so.

Here is an excerpt about Judge Letts from Streeter’s story.

Unable to consider the context of cases, he grew indignant at being required to sentence wrongdoers to decade-long prison terms when he often felt they deserved far less. His anger intensified when he saw that almost every defendant coming into his courtroom was black, even as statistics showed that most drug users were white.

He was struck by how smart many of them seemed, how driven. Born into different circumstances — into his circumstances — some also might have become vice presidents at Teledyne, he figured.

“I began to see that it is all too easy for a judge to just put a C for convicted on a guy’s forehead and then to walk away like the guy is, and always will be, nothing,” he said. “It hit me — I am going to try my best, from then on, to extend myself, see their humanity and let them see mine.”

He fought hard against mandatory sentences, calling them discriminatory and even unconstitutional, disparaging them in opinions that circulated in legal circles and earned him the ire of federal prosecutors.

The 3-Striker in the story is Michael Banyard. Here is some of what Streeter writes:

Michael Banyard was born in Compton in 1967, the son of a truck driver and a beautician. “When I gave birth to Michael he had a 102-degree fever,” said his mother, Obie. “I remember the doctors putting him in an ice bath and I remember how terribly worried I was for my child. That was the start.”

His mother recalled that young Michael was sweet, shy and deeply affected by what happened around him. When he was 5, gang members broke into the family’s home, rampaging through everything. His mother never forgot the look on her son’s face when the break-in was discovered: fear, helplessness and anger. They were emotions he could never seem to shake.

His father left the family when Banyard was in grade school. The men he looked up to were gangsters. By 16, he was one of them, a full-fledged member of the Compton Santana Crips who sold crack on the streets. His gang name was Loco Mike.

That was one side of him. The other was the polite, razor-smart, church-going teen who would retreat to his room for hours, hounded by shame for his street life, remembering childhood days when he would fall asleep on his father’s chest.

At 17, he turned to the drug he had been selling. It wasn’t long before crack owned him. He sold his girlfriend’s jewelry to pay for a high. Then he hocked her Chrysler LeBaron to a stranger. He went to a police station and begged to be arrested because he couldn’t stop. The cops told him to go home.

In 1988, he was in a minor car wreck and stole $6 from the other driver. He was arrested and convicted. It was his first time in prison, his first felony. Under California law, his first strike.

When he got out three years later, he fared well for a while, managing his mother’s Inglewood beauty shop. But one night he got high. He fought with his girlfriend and she called the police. He pleaded no contest to assault and was placed on probation. It was his second strike.

By 1994, he had lost every vestige of control over crack. His addiction pushed him onto the forlorn patch of downtown streets that is skid row. He was arrested for a string of petty crimes, but mostly the cases were dismissed. When they weren’t, he got probation or a few weeks in jail. Then he was back on the streets.

He no longer called his family, even his mother. He smelled of urine, slept on sidewalks and underneath cars. There were times when his clothing was stolen, so he fashioned pants out of large plastic garbage bags, tied at his waist.

One day, he made his way to a freeway overpass and looked down at the cars. He was ready to jump. But at the last moment he thought of his mother and stumbled away.

On Sept. 4, 1996, a stranger approached with crack. Suddenly, cops swooped in. They would later testify that they saw drugs drop to the ground as they approached, drugs Banyard had just bought. It was less than a gram of crack, barely enough to fit under a fingernail. That didn’t matter. He was convicted and it was his third felony.

California’s three-strikes law mandated that he be sent to prison for at least 25 years. At the end of that time, his release would be subject to approval from a parole board. He could die behind bars.

:In prison, Banyard was free from drugs. His mind cleared and his anger softened. He gained a new sense of spirituality and spent almost all his time in the prison law library, preparing appeals. A state court reviewed his case and turned him down. A federal magistrate said his claims lacked merit. The attorney general said he should remain in prison.

By 2002, he was down to one last appeal -- to the U.S. District Court, where his case went to Letts. The judge was approaching 70 then, working less and reflecting on his life. He thought often of his father — a steady, stealthy drinker late in life — and of a cousin who became a fervent member of Alcoholics Anonymous. He had empathy for their struggle. He had his own dark bouts with depression and sometimes talked openly about them in court. He understood how it felt to battle despair.

It was against this backdrop that he took Banyard’s case.

Read the rest of Sunday’s story here.

And then go on to Part Two here.

If you think this story has a nice, tidy, upbeat ending, it doesn’t. But it ends with hope….a strong dose of humanness, and a sense of kinship found.

Photo by Jay L. Clendenin / Los Angeles Times

Judge Alex Kozinski, the chief judge for the U.S. Ninth Circuit Court of Appeals, is mighty pissed off at the 9th circuit’s refusal to hear a 4th Amendment warrant case.

As the San Diego City Beat writes:

The other judges decided not to consider an second appeal by a San Diego man whose house was searched, without a warrant, by police who had arrested him outside his home. That, Judge Alex Kozinski says, erodes the protections against unlawful search and seizure that Americans hold dear. And he goes so far as to suggest police lied to the court.

Here’s a snippet from Kozinki’s dissent. Actully the whole thing is worth reading. Plus I’m impressed wtih Kozkinski’s use of “bupkis” in a Federal Court ruling.

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around asuspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstancesjustif[y departure from the warrant requirement.” … The place where warrantless searches are deemed “presumptively unreasonable.”

Government encroachment into the home, which I lamented three years ago in United States v. Black, dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example:
The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete.

Welcome to the fish bowl.

No kidding.

Read the rest of Kozinski’s opinion. It’s scathing.

The original majority decision may be found here.

Based on what Kozinski says, one is left to wonder how our city’s law enforcement agencies can be expected to train their young officers to respect the Constitutional rights of those with whom they deal—when the court appears to be saying that such nicities aren’t all that important.

JUDGE DENIES DEPUTY UNION REQUEST TO STOP RELEASES FROM OC JAIL

Okay, Superior Court Judge Steven Perk has declined to buckle under to the OC Deputies’ union’s law suit asking for a temporary restraining order to keep the OC sheriff from letting any more inmates out from the jail early in response the the state’s corrections reform law that kicked in Jan 1. But the judge said he would revisit the thoroughly bollixed up issue in mid March. For her part, the OC Sheriff has been applying the law retroactively, even though anybody with a grasp of logic who read the law could see that this was not its intention—as California Attorney General Jerry Brown has stated with admirable succinctness.

As should be evident by now, I’m for the parole revisions and the new provisions that allow prisoners—both in prison and in jails—to earn a few days or weeks off their sentences by engaging in productive and rehabilitative programs. Such programs are statistically likely to decrease inmates likelihood of reoffending,. And, by the way, the amount shaved off their sentences is comparatively minimal.

But I do not see any reason why we have to start dumping people out of jails by the hundreds, freaking everyone out, when the law says to do no such thing. If for no other reason, its a lousy PR move.

Here’s what Jerry wrote on the retroactivity issue.. It’s a little long to paste the best of it here, so you’ll have to click through.

To make matters more bizarre, some of the crafters of the law are saying that they never meant it to apply to jails. (Well, Assembly Majority Leader Alberto Torrico, if you didn’t want your law—good ol’ SB 3X 18 —to apply to jails, then it might have been wiser not to have written into it the words, “This bill would also revise the time credits for certain prisoners confined or committed to a county jail or other specified facilities, as provided.”

The Wave has an informative take on the quarrel.

And the LA Times Andrew Blankstein and Richard Winton have more of the details on the judge’s decision:

A judge on Thursday denied a request by the union representing Orange County deputies to end the early release of jail inmates but signaled that the decision would not be the last word on the issue, setting a hearing for further arguments next month.

In turning down the bid to temporarily block the releases, Superior Court Judge Steven Perk noted that Sheriff Sandra Hutchens has the final say in choosing how to address the new state law that went into effect Jan. 25.

The judge set a hearing for March 12 on arguments for a preliminary injunction.

The law reformulated good behavior credits for state prison inmates, accelerating their release. But it also has caused confusion among local law enforcement officials, many of whom have been advised by county counsels to release inmates early, an interpretation that was backed up this week by Atty. Gen. Jerry Brown.

SPEAKING OF THE CONSTITUTION: THE SUPREMES WILL HEAR A 2ND AMENDMENT HAND GUN BAN CASE NEXT MONTH

The Wall Street Journal has this in Friday’s paper about the upcomng case the Supreme court will hear regarding the ban on handguns in Chicago and Oark Park, Ills.

The WSJ reports that the case has brought together a surprising mix of allies on the left and the right. Not a bad thing.

(Now if we could just have a similar left/right collaboration in Congress Over something. Anything.)

NATIONAL ENQUIRER OFFICIALLY IN THE RUNNING FOR PULITZER

As well they should be. Yes, there are ethical issues caused by their policy of paying sources. But they should still be in the running for their reporting on John Edwards. Speaking personally, I don’t think they deserve to win. But I do believe they should be shortlisted.

The Huffington Post (which is getting WAY too celebrity driven of late) has the story:

The Pulitzer Prize Board has officially accepted The National Enquirer’s submissions for breaking the John Edwards scandal, according to sources close to the Board. In a historic move, the Pulitzer Board conceded that the self-proclaimed tabloid is qualified to compete with mainstream news outlets for journalism’s most prestigious prize. The Enquirer is in the running for the Pulitzer in two categories: “Investigative Reporting” and “National News Reporting” for The National Enquirer staff.

[SNIP]

Before The Enquirer submitted its nomination, the Pulitzer’s long-time administrator Sig Gissler attempted to pre-empt this campaign by telling reporters that the tabloid is not eligible due to various technicalities. Gissler, however, showed great humility and fairness by reading The Enquirer’s submission and admitting that the paper is eligible to compete. Gissler has given The National Enquirer the legitimacy it long deserved for breaking a political scandal of national significance.

The National Enquirer single-handedly broke the stories about Edwards’ affair with a campaign staffer, their out-of-wedlock child, the expensive cover-up and the federal grand jury investigation of possible misappropriation of campaign funds. During the 2008 presidential campaign, the other reporters covering Edwards’ campaign did little if anything to follow up on the published stories in The Enquirer.

THE CALIFORNIA SURPREMES UPHOLD JESSICA’S LAW

On Monday, the California Supreme Court largely upheld Jessica’s Law dictating where sex offenders are allowed to live—even though, by most accounts, it wreaks havoc with the parolee’s ability find a place to live and to stabilize his life and does little to protect public safety.

Stories on the very disappointing ruling may be found that the Sacramento Bee,the San Jose Murcury News and the LA Times, among others.

REFORMING THE DREADED NCLB

President Obama’s proposed budget includes some serious—and much needed—overhauling of the controversial No Child Left Behind act.

On Monday, KPCC’s Patt Morrison had an informative discussion on what the changes would mean should they take place.

A HIGH SCHOOL FREE OF TAUNTS AND RIDICULE

It shouldn’t be that much to ask. The LA Times has the story about the new school. Here’s how it opens:

Aiden Aizumi almost didn’t graduate from high school.

Aizumi, now 21, is one of many gay, lesbian, bisexual and transgender young people who say they have suffered through school, enduring homophobic taunts and name-calling.

He completed his final semester of high school from home.

His mother, Marsha Aizumi, didn’t want others to endure the same treatment, so she approached educators about a new school geared for such students.

The school, which serves grades seven through 12, is a collaboration between Opportunities for Learning, a charter school with 34 locations across Los Angeles and Orange counties, and Lifeworks, a mentoring program for lesbian, gay, bisexual, transgender and questioning youth sponsored by the L.A. Gay & Lesbian Center….

By the way, the kind of taunting that kids want attend this school to escape is yet one more reason why Prop 8 is so vile: By its existence it says to such kids that there is something wrong with them, that they are not normal, that their desire to one day marry the person they love is not only not allowable, it an active threat to the well being of others.

Being a teenager is hard enough without this kind of abuse.

Yesterday was the third day of testimony in U.S. Federal Court for the lawsuit that seeks to overturn Prop 8.

The San Francisco Chronicle reports that Wednesday’s main issue was whether anti-gay sentiment played a part in the drafting and passage of the initiative.

Opponents and supporters of same-sex marriage dueled in federal court Wednesday over the question of whether anti-gay discrimination has largely faded or endures in ballot measures like California’s Proposition 8.

[SNIP]

Prop. 8’s opponents sought to illustrate [the still present] hostility with their pretrial deposition of William Tam, a San Francisco chemical engineer and activist who was one of the ballot measure’s official proponents.

Tam, who organized rallies and raised money for the measure, sent a letter to Prop. 8 supporters during the campaign warning that if same-sex marriage remained legal, “other states would fall into Satan’s hand.”

San Francisco’s government, already “under the rule of homosexuals,” would move next to legalize sex with children and prostitution, Tam said.

Zach Behrens has been doing a great job covering some of the more intense moments of the story for LAist and has more on the Tam deposition. It is….shall we say—colorful. (And not in a good way.

(Photo by Tom Andrews for LAist>)

WANNA SAVE MONEY ON PRISONS? REFORM THE TECHNICAL PAROLE VIOLATION SYSTEM

Last fall when the California Department of Corrections and Rehabilitation issued its annual report for the year 08-09, it stated that of those admitted to prison, 66,317 were people who were either brand new felons or parolees who had been convicted of a new offense. However, 74, 531 admissions during the same year (see above) were conveyor-belted back into lock-up for technical violations of their parole. Most often the violations are something like testing dirty or failure to report to the parole officer (often because the parolee is afraid of testing dirty).

Law enforcement will rush in here to say that some of those technical violators were up to no good in other ways, but prosecutors decided to go with a parole violation because it was easier. Okay, fair enough.

But the majority are just plain old garden variety technical parole violators. I’ve watched it happen only a about zillion times.

If the method worked it would be one thing. But it doesn’t. It has been shown to be the opposite of rehabilitative and not particularly useful as a deterrent either. Plus it costs us a freaking fortune in direct costs, far more in indirect costs.

This means that, fiscally speaking, it’s a policy that is breaking our state.

That’s why it’s important to read the article by Jeffrey Rosen in Sunday’s New York Times Magazine. (Yes, that Jeffrey Rosen. But never mind all those issues right now.)

Rosen writes about a parole violation system being pioneered by a judge in Hawaii that involves swift and certain consequences for parole violators, but not 10 months or a year in state prison, as it does in California. AND it’s working—for a host of psychologically sound reasons.

Read the story here. Then write the governor and/or your state legislator and tell all those people to DO SOMETHING USEFUL for a change.

CHARTER SCHOOLS’ ENROLLMENT IS UP AND SO ARE THEIR TEST SCORES

Three LA Times reporters, including veteran education reporter Howard Blume, have a story about the huge effect that charter schools in Los Angeles County are having on LAUSD, the nation’s second largest school district. Meanwhile, charter enrollment is up and the charters’ standardized test scores “outshine those at traditional campuses.”

Here’s how the story begins:

Over the last decade, a quiet revolution took root in the nation’s second-largest school district.

Fueled by money and emboldened by clout from some of the city’s most powerful figures, charter schools began a period of explosive growth that has challenged the status quo in the Los Angeles Unified School District.

Today, Los Angeles is home to more than 160 charter schools, far more than any other U.S. city. Charter enrollment is up nearly 19% this year from last, while enrollment in traditional L.A. public schools is down. And a once-hostile school board has become increasingly charter-friendly, despite resistance from the teachers union.

Read on.

CRIME MAY NOT PAY, BUT NEWARK NEW JERSEY’S CORY BOOKER NOW DOES.

Newark mayor Cory Booker announced Friday that the city will pay good money for anonymous tips. This is different, by the way, than the big money rewards for “information leading to the arrest and conviction of….”

This is a cash for anonymous crime tips deal that, according to Booker, seems to be actually working. (There is a whole coded system for those who have earned the bucks but really need or want to remain anonymous.)

However, Cory Booker is doing more than simply locking people up. He has also announced the city’s new prisoner reentry initiative.

So what’re you doing in 2016, Mr. Mayor? You going to be busy or anything?

In the courtroom of U.S. District Court Judge Manuel Real, the latest bail hearing for Alex Sanchez, held took a sharp turn on Wednesday morning, causing Sanchez supporters to bask cautiously in what seemed to be a small but tangible glimmer of hope.

The changed atmosphere at the hearing seemed presaged when Sanchez was ushered into the courtroom in casual slacks and a shirt, rather than the jail house jumpsuit and shackles that have characterized his previous appearances. On the way in, he managed to flash his family a smile that, while it did not exactly make it to cheerful, was clearly striving for upbeat.

At the last bail hearing, Judge Real repeatedly interrupted and corrected Sanchez’s court-appointed attorney, Kerry Bensinger, disallowing most of the material that Bensinger sought to present in order to counter the prosecution’s contention that Sanchez should be denied bail as he was both dangerous and a flight risk. However yesterday’s Judge Real appeared to be in a whole different mood and, while he questioned Bensinger at times, he remained even tempered.

This time around, most of Judge Real’s most aggressive challenges were aimed at the younger of the two government prosecutors, Elizabeth Carpenter, who grew visibly flustered at Real’s sudden change in direction.

Perhaps the oddest moment in the exchange was when Carpenter told the judge that the defendant’s supporters had “publicly stated” that Sanchez “could not get a fair trial” in Real’s court.

Well, what evidence did she have of such a thing? the judge wanted to know. (Cough—this blog and the Nation magazine—cough, cough) Surely the defendant and his lawyer had not stated that?

“No, no,” said Carpenter, back-peddling rapidly, Mr. Bensinger had not made any such statements. “But the defendant’s supporters certainly have, including one who had signed an affidavit of surety.”

(At this, veteran civil rights attorney Jorge Gonzalez elbowed Tom Hayden who, at an earlier hearing, had offered his house as part of a guarantee of bail for Sanchez. Hayden studiously ignored the elbowing.)

Judge Real, however, fastened on to the statement with gusto. “But those are lay people,” he roared. “They don’t know anything about the law!” Appearing fond of his words, Real repeated them. “That’s someone who knows absolutely nothing about the law!”

Then Real fixed Carpenter with a steely gaze. Surely she wasn’t trying to paint the defendant with those statements, he asked her. At that Carpenter backed away from the subject altogether and turned to explaining why Sanchez was a flight risk.

This too, Real challenged.

Well, where exactly would he flee to? the judge wanted to know. Carpenter hesitated. “Where will he go?” Real asked again. After all, Real pointed out, Sanchez had been granted political asylum because of the danger El Salvador presented to him, did the government have any reason to believe he would flee there?

The government did. But in a complete 180 from his hardline view of Sanchez’s flight risk potential at the last bail hearing, Real further questioned the prosecution’s assumption. Carpenter was left muttering something about Sanchez fleeing to South American countries without extradition treaties while the judge looked exasperated.

Yet the most startling incident came slightly later in the hearing when Carpenter was explaining why Sanchez was too dangerous and gang involved to be granted bail and Real again challenged her assertions. Had Sanchez been arrested or had any kind of negative police contact in the years between the asylum decision and the case before the court? Sanchez asked. He had not, Carpenter admitted.

Well, Judge Real said finally, “Isn’t there a possibility that you and Mr. Bensinger can get together and choose someone, maybe the person in charge of gang programs for the City, or someone of like authority with the LAPD who could come in and testify whether they have any evidence of continuing gang involvement by Mr. Sanchez. Perhaps we could arrange for a closed hearing to allow that person to testify frankly without fear of revealing critical information.” [These notes on dialogue are approximate.]

The 40 or so observers in the court tried not to stare open-mouthed.

And with that, Judge Real ordered the hearing to resume on January 13, 2010, at 10:00 a.m. The gavel came down. And that was that.

“What to make of it?” wrote Jorge Gonzalez when he emailed me later. “Who knows? Is the Judge merely making like he is sincerely considering the defense arguments for the appellate courts and the public?” (As a trial attorney, Gonzalez is very familiar with Real and his courtroom habits.) “Maybe, but if he leaves the door open a crack [Bensinger] is obligated to stick a foot in and put forth more positive evidence for him to consider. He will make the case that surely there must be a way that, given certain conditions, the rights of the defendant and considerations of the safety of the community can be satisfied.” It looked like supporters came out of the courtroom cautiously hopeful, he said, “that they might be able to persuade the Judge of the merits of that statement.”

Tom Hayden’s reaction was similar. “Taken literally,” he wrote in his own email after the hearing, “the judge’s order means that the city’s top gang reduction official, Guillermo Cespedes, and a top LAPD gang expert appointed by the new Chief Charles Beck would be asked, or even subpoenaed, to state what they know about Alex Sanchez from the past decade. Since city and police officials have often collaborated with Sanchez in the past, the public record might place them at odds with former CRASH officer Frank Flores, the prosecution’s expert witness.”

But, like Gonzales, Hayden was reluctant to be too optimistic. “There is no predicting whether this represents an unprecedented approach to conflict resolution,” he wrote, “or merely a step by the judge to prove to the critics that he is holding an exhaustive hearing, and armor-plating himself against a future appeal, before denying Sanchez bail once again. ”

And so the all-too-human legal drama continues. Stay tuned.

PS: And, for those of you who are not as entirely riveted by the Sanchez drama as some of the rest of us, take a look at this article on the already controversial UCLA study that contends legalizing undocumented immigrants would boost California’s sagging economy. Anna Gorman reports for the LA Times.

PPS: OMG, how could I have missed this?! Apple has rented a stage at the Yerba Buena Center for the Arts in SF on January 26 [changed to Wed, 1/27] for a “a major product announcement.” OMG! OMG! Could it be? An Apple tablet! An iReader! (Cue loud version of Apple boot-up cord along with visual of Apple logo bathed in heavenly shaft of light.)

David Carr at the NY Times is busy making up possible names for the possible thang (which is already possibly named the iSlate).

Hmmm. Must cut down on consumption of food and electricity so that I can afford the doubtlessly absurdly expensive gadget if indeed it is to be introduced in exactly 20 days. (Not that I’m counting.)

(And yes, this is a social justice issue. How could you think otherwise?)

PPPS: Oh, yeah, and the governor gave some kind of speech. More on that later on.

FEDERAL BAIL HEARINGS & GROUNDHOG DAY: WHO JUDGES THE JUDGES?

Alex Sanchez, the gang intervention leader and Homies Unidos founder who was indicted last June on federal Rico charges, is going back to court at 10 a.m. on Wednesday January 6 for another bail hearing.

It will be his third.

Most criminal cases feature a single bail hearing. From the beginning, however, Alex Sanchez’s situation hasn’t been “most cases.”

(For the back story on the arrest of Alex Sanchez start here and read from the bottom up.)

The hearing will take place in the same federal courtroom with the same federal jurist who presided over the last hearing—namely US District Court Judge Manuel Real.

The new hearing was ordered by the 9th Circuit Court of Appeals, an action that was viewed as both good news and bad news by Sanchez’s supporters and his court-appointed defense attorney, Kerry Bensinger. Good news because there is to be a new hearing at all after Sanchez was denied bail twice in a row. Bad news because the hearing is back with Judge Real, who is the guy who was the most recent and vociferous denier.

In late November, Sanchez attorney Bensinger filed a brief with the 9th Circuit in an effort to get a new hearing by a new judge, contending that with Real his client did not receive anything resembling a legally proper hearing and that Sanchez would be unlikely to receive a fair trial with the controversial judge either.

The government prosecutors subsequently countered with their own brief and everyone waited to see what the 9th-ers would say.

On December 22, the appeals court delivered its ruling. The 9th Circuit panel told Real he would need to set up a new hearing and, delivering a slight whack to the judge’s metaphorical hands, the panel set down some requirements. As Tom Hayden notes, Real was to “accept and consider” evidence “beyond a reasonable doubt” that Sanchez would be a danger to the community if released on bail. He was also to consider the “preponderance of evidence” in deciding whether Sanchez would be a flight risk.

In other words, the 9th Circuit kinda sorta conceded that Real did not do the swellest of jobs with the last hearing, but they were not willing to go so far as to take him off the case.

“I think part of the problem is that, off the bench, everyone likes Judge Real. Off the bench, he’s very charming,” said LA criminal defense attorney Harland Braun when we talked about the matter a few weeks ago. But on the bench, Real is considered by many, Braun among them, to be an irrational tyrant who actively skews proceedings toward whichever side he believes should prevail. “He does things like make faces at the jury during testimony, and signal to the prosecutor when to object. It’s a totally unnatural situation.” (Braun has been up against Real many times over the years and is among those who have been vocal about their opinion that the judge, who will be 86 later this month, should retire, or at the very least, step down to part-time “senior” status, for which he has been eligible since 1985.)

“But really, I blame the 9th Circuit,” said Braun. “They know what’s going on. But they don’t have the guts to do anything about it.”

Whatever the case, Sanchez supporters don’t seem to hold out lots of hope that Judge Real will reverse himself and grant bail. Yet there is much interest as to whether, in order to placate the 9th Circuit, the judge will allow some of the testimony and lines of questioning that he excluded last time Sanchez was in his courtroom.

THE CURIOUS CASE OF THE ACCIDENTAL TRANSFER

To make matters even more perplexing, for a while it looked as if Judge Real was indeed going to be off the case, but not because of the doings of the 9th Circuit.

During the time when Sanchez and company were waiting for the 9th to make up its mind, an odd thing happened: Bensinger unexpectedly received notice on December 9 that Real had been taken off the case and it had been assigned to a new jurist, a Judge Christina Snyder. The order was signed by Judge Snyder on December 2, officially filed two days later.

Sanchez supporters were ecstatic at the news, but Bensinger was also surprised because the only request he had made was through the Court of Appeals, and that was still pending.

Eventually it was learned that an attorney for one of the other 18 defendants named in the federal Rico case of which Sanchez was a part had filed a request for a transfer to Judge Snyder. The attorney applied for the judge swap under a legal protocol known as a “low number request.” It seems this other defendant had been tried in front of Snyder in a nearly identical case in 2006, thus could conceivably qualify for the oddly named low number request (which in state court is called, much more sensibly, a “notice of related case”)—the idea being that a judge who has already tried a defendant for a nearly identical offense has less of a learning curve so therefor can more easily speed things along.

But since this was a RICO case with a zillion other defendants all legally joined at the hip, a transfer of one case meant a transfer of all. Judge Snyder could say yes or no to the request, depending upon her schedule and her take on the matter. It appeared that on December 2, Judge Christina Snyder said yes –and signed the order.

But a few hours after receiving notification of the transfer, Bensinger got a call from the federal prosecutors who said they had talked to Judge Real’s clerk, that Judge Snyder’s signing of the order had been a big silly mistake, and that Real wanted the case back, thank you very much.

Since Bensinger had gotten no official notice of the second judicial switcheroo, he didn’t know what to think. But, a day or two later still, Bensinger did indeed get yet another order, this one signed by Judge Gary Allen Feess, the Chair of the Case Assignment and Management Committee.

(If Judge Feess’s name sounds familiar, he was the fellow who oversaw the LAPD’s Federal Consent decree.)

Feess wrote that United States District Judge Christina Snyder had “inadvertently signed a transfer order…” (How one “inadvertently” signs a transfer order is unclear. But okay.) However, wrote Feess, “…the current case is at such an advanced stage and Judge Real has spent such substantial time and effort on the matter that no judicial economy would be achieved by a transfer at this late date.” The transfer order was thus VACATED (Judge Feess’s caps, not mine) and “…the matter is ORDERED to be returned to Judge Real’s calendar for all further proceedings.”

And so it was.

Onward to January 6.

NOTE: FOR A LESS SANCHEZ-FRIENDLY but always exceptionally informative view of some of these same matters, be sure to check Tom Diaz’s post at Fairly Civil.

OH, AND WHILE WE’RE ON THE SUBJECT OF COURTS AND CASES, THERE IS THE MATTER OF KEVIN COOPER

Without knowing lots more about the case, I don’t have a strong personal opinion on this man’s guilt or innocence, but whatever your view, the issue—which was written up in the LA Times on Sunday by Carol Williams—-makes for troubling reading.

In the aftermath of the 2006 cyber-bullying case that led to 13-year-old Megan Meier’s suicide, there has been a predictable effort to clamp down on any actions by students that seem even vaguely similar to the fatal case. There is also a movement to perhaps criminalize such actions.

Now, however, free speech advocates are pushing back.

LA Times writer Victoria Kim writes a very informative and thoughtful article on the topic that begins with a story about Beverly Hills girl who was the victim of mean girl video in which a bunch of fellow students said creepy things about her on camera and posted it on YouTube. School officials reacted by suspending the student who did the YouTube posting. Her parents took the case to court and, last month, an LA Federal judge sided with the mean girl.

To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul” of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.

“The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments,” he wrote.

School administrators will be appealing.

Although the female grizzly mother in me wants all the video-posting little wretches suspended with extreme prejudice, my wiser self agrees entirely with Judge Wilson.

Read the rest of the story. It takes a multi-sided look at a complex question with far-reaching implications.

NOTE: I admit, I took the night off last night because it was my birthday, and I was celebrating with friends and family. (My son and his girlfriend cooked for all concerned. How cool is that?) I am running off shortly, but I have a pile up of good stories, so stay tuned.

NOTE 2: Speaking of parents and worry, over the weekend, there was an alcohol-related death of a South Pasadena teenager that was reportedly related to a high school party. According to the back stories I have heard, the tragedy appears to have some similarities to the Orinda case.

WHEN DOES RESTRAINING AND SECLUDING KIDS TURNS ABUSIVE AND DANGEROUS

On Wednesday, December 9, Representatives George Miller (D-CA) and Cathy McMorris Rodgers (R-WA) plan to introduce a bill that prevents the misuse of restraint and seclusion on school kids. (Miller is the chairman of the House Education and Labor Committee. McMorris Rodgers is a member of the Committee.)

One would imagine that such a bill as this one would not be necessary in this day and age. But one would be wrong.

It seems that, unlike with hospitals, and like facilities that receive federal funding, there are currently no federal policies that provide guidelines as to how restraint and seclusion can be used in schools, and the state laws are ridiculously uneven.

As a consequence, there have been reports of horrific cases of adults sitting on kids who are face down until they have stopped breathing, adults placing mentally disabled kids in closets for extended periods of time, in certain cases with fatal results, and on and on.

(The video above shows the Congressional testimony of a mother named Toni Price about once such incident. Price’s account is dignified, clear and heartbreaking.)

A look at the report on the matter from the US General Accounting Office is quite sobering.

Anyway, this is a bipartisan bill. Take a look.

The video above is of one mother’s testimony at a Congressional hearing on the issue this past spring.

ROBBER APOLOGIZES TO VICTIM

Evidently on Sunday night, a gun-wielding robber who jacked $70 from a Christmas tree salesman apologized to his victim saying, “Times are tough,” according to the LA Times.

I know several young able bodied men who are about to apply for General Relief because, despite daily searches for any kind of work they can find nothing, and they need some way to put food in the house but do not want to turn to the same desperate strategy as the gunman.

I got a call from one of them last night. He does not want a government hand out, he said. “But what can I do?” he asked me. I had no answer.

CAN A CAMPUS CHRISTIAN GROUP BAN GAYS AS VOTING MEMBERS?

On Monday, the Supreme Court agreed to take a case which pits issues of religious freedom against a college’s policy of nondiscrimination. Moreover, the case has views of two circuit courts at odds with each other, one of them California’s beloved and sometimes notorious 9th Circuit.

The Christian Science Monitor has a very thorough write up. Here’s a clip:

The Christian Legal Society (CLS) at the Hastings College of the Law in San Francisco was stripped of its registered student organization status at the college because it refused to allow gay and lesbian students to become voting members or officers of the group.

Under the Hastings nondiscrimination policy, student organizations must allow fellow students to join and potentially seek leadership positions in any organization without regard to their status or beliefs….

Starting in the 2004-2005 academic year, the CLS required prospective members to sign a statement of Christian faith. The statement includes a pledge that the undersigned student trusts in “Jesus Christ as my savior.”

Prospective members must express belief in several religious tenets, including “one God, eternally existent in three persons, Father, Son, and Holy Spirit.” The statement includes a pledge of belief in the virgin birth, eternal life, Jesus’ resurrection, a divinely created heaven and earth, and that the Bible is the inspired word of God.

In addition, the national Christian Legal Society developed a policy position stating its view of biblical principles of sexual morality. The position, adopted by the Hastings chapter, said that “unrepentant participation in or advocacy of a sexually immoral lifestyle” was inconsistent with the group’s statement of faith and would disqualify an individual from membership.

Great case! Morally complex and legally ambiguous. Go Supremes!

JUSTICE BREYER: “GET ME THE REWRITE GUY!”

And Speaking of the Supreme Court…based on another case that went before the court on Monday, it looks quite possible that the nation’s Miranda warning may get rewritten. The case—Florida v. Powell—concerns one Kevin Dwayne Powell who did not understand, even after the warning was given, that he could have an attorney with him during questioning—as that fact is not really spelled out.

(Although if Mr. Powell had watched a little more episodic television, surely he would have known his rights a bit better.)

As the AP explains the rest.

STILL MISSING DAVID FOSTER WALLACE

This isn’t really a social justice issue at all, it’s a literary issue. But if you care about such things, the new posthumous piece of fiction by David Foster Wallace in the upcoming issue of the New Yorker, is a reminder why so many of us are, more than a year later, so devastated that Wallace could seem to find no way out of his personal psychic pain other than to silence it in the most permanent of manners.

Still and all, no matter how bittersweet, another encounter with DFW’s huge and humane talent is utterly thrilling.

The New Yorker published short story is an excerpt from The Pale King, the unfinished novel he was working on before he committed suicide in September 2008.